Wisconsin: The Law
Wisconsin's child abuse law makes it a felony for anyone to engage in sexual activity with someone younger than 16. It applies to consensual sex, even between teens of the same age.
Last summer, when she was made pregnant by her boyfriend at age 15, Sarah, a shy girl with a pretty face, went to a clinic with her mother for consultation.
As they left the Racine clinic with blankets and booties, neither had any idea that three weeks later, an investigator from Racine County Child Protective Services would show up on their doorstep.
To their horror, they say, the investigator spent a month interrogating Sarah and her mother about Sarah's sexual relationship with her 15-year-old boyfriend of two years.
The investigator's ruling: Sarah would be charged with sexual assault and prosecuted in juvenile court for having sex with a minor. Her boyfriend would be charged, too.
"I didn't know what to say," Sarah, whose name has been changed because she's a minor, said in a recent interview as she sat on her living room couch clutching her newborn son. "I had no idea how this was happening."
Sarah and her mom didn't know that Wisconsin's child abuse law, which makes it a felony for anyone to engage in sexual activity with someone younger than 16, applies to consensual sex between teenagers. And it applies even in cases like Sarah's, where the sexual partners are the same age. Sex with teenagers ages 16 to 18 is a misdemeanor.
Under a separate law, teachers, school counselors, social workers and doctors and other health care providers are required to report sexually active adolescents to county child protective services offices. Those who fail to report can be fined up to $1,000, face jail time or both.
Through mandatory reporting, hundreds - perhaps thousands - of teenagers are being referred each year in Wisconsin to child protective services for having consensual sex with other teenagers, officials say.
A growing number of those teens are being prosecuted for sexual assault, though state and county statistics don't differentiate between sexual assaults involving consensual and non-consensual sex, the officials say. Among them are teenage girls who were once viewed only as victims.
In Racine County alone, an estimated 200 sexual assault referrals involving consensual teenage sex were reported last year to the child protective services agency, said Kittie Milkie, the agency's supervisor. More than a dozen of those, including ones involving same-age couples, were prosecuted, she said.
"It used to be that mostly boys were apprehended," Milkie said. "The idea was that the girls had suffered enough, especially if they were pregnant. Today both the boy and the girl are being prosecuted in an effort to be more equitable."
Not all are prosecuted
Prosecutors and workers in child protective services say only teenagers who pose problems to their families or schools are being prosecuted for having consensual sex with partners of similar ages.
They argue that during six months of court supervision - the typical sentence imposed - the teens are able to receive counseling, have curfews and school attendance enforced, have mandatory separation from their sexual partners and get other services they need. In many cases, prosecutors say, parents are pushing for prosecutions as a way to control their children.
That's what happened last summer in Milwaukee County. When an Oak Creek woman found her 14-year-old daughter nude in the woman's bed with a 14-year-old boy, and the teens were flippant, she called police.
"The parents were begging for us to intervene and get help for the teens," said Lori Kornblum, an assistant district attorney in Milwaukee County. She says the DA's office "gets a huge number of referrals" of sexual assault cases involving teens who have had consensual sex. Of those, "some, perhaps one or two a month," are prosecuted, she said.
But critics say Wisconsin's child abuse law, one of the broadest in the nation, has spun out of control. Instead of protecting children from older predators, as intended, they say, it's being used to ensnarl teenagers who engage in consensual sex - a disproportionate number of them from low-income families who are identified while seeking public assistance - into a system that unfairly brands them rapists.
Never before in trouble
Sarah had never been in trouble with the law or at school before, she and her mother said. Now she's serving six months of supervision under a consent decree after admitting to sexual assault in January. Throughout her pregnancy, she says, she was forced to have no contact with her boyfriend. Only in recent weeks have visitation rights been established.
"Prosecuting these kids is a disservice to teenagers and the system," said Adrienne Moore, an attorney with the Racine public defender's office who represents juveniles. "Throughout history, kids have been experimenting with sex. It's not criminal. And charging them won't change it. All it does is clog the system."
The worst part, Moore says, is that the teenagers she sees don't know that it is illegal for them to have sex or that it is mandatory for teachers, counselors and others to report them, and that, in the worst-case scenario, they could land in detention centers, jail or foster homes.
Few have any idea that if they were prosecuted as adults they could be required to register with the state's list of sex offenders. That was what happened to Kevin Gillson, an 18-year-old from Port Washington who was prosecuted in 1998 as an adult for having sex with his 15-year-old girlfriend after she became pregnant. The judge sentenced Gillson to two years of probation.
Since then, the Legislature has passed a law allowing judges to waive the sex offender registration requirement for teens who are convicted of having non-forcible sex with a minor who is no more than four years younger or older than the offender.
Critics say similar age-specific exceptions should be added to Wisconsin's child abuse law.
In most states, child abuse laws specify that there must be an age gap of at least three years between teens 13 or older in consensual sexual relationships in order for the older partner to be subject to prosecution, said Eva Klain, a project director at the American Bar Association's Center on Children and the Law in Washington, D.C.
Kittie Smith, a planning analyst in the violence against women program with Wisconsin's Office of Justice Assistance, says that in recent years, she has received an increasing number of calls from district attorneys who are confused about how to deal with sexual assault referrals that involve teens of similar ages.
As district attorneys and child protective services workers struggle with how to apply the law, Sarah's mom says it's important for schools to inform students of what can happen if they're caught being sexually active.
"They teach them in school about condoms and other birth control," her mother said. "No one says that if they do have sex they could be charged."
..News Source.. by MEGAN TWOHEY
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